Ongoing Pursuit of Selenium Cleanup

By Cindy Rank

Responding to another in what seems to be a never-ending number of coal mines that continue to pollute streams throughout the state with toxic levels of selenium West Virginia Highlands Conservancy recently joined in another legal challenge.

JMAC Leasing’s Briar Mountain operation, a 970 acre mine in Kanawha County, is but the latest of mines to face scrutiny of Appalmad in a legal challenge meant to bring companies into compliance with the terms of permits and reduce the level of selenium being discharged.

Discharge from the mine site enters Cabin Creek of the Kanawha River not far downstream of Dakota and upstream of Leewood. The excessive selenium discharges are contributing to the impairment of the receiving streams.

Based on JMAC’s record of non-compliance, West Virginia Highlands Conservancy joined sister organizations Ohio Valley Environmental Coalition (OVEC) and Sierra Club to send a Notice of Intent to Sue in November 2020.

The company has not corrected its actions, nor has any state or federal regulatory agency taken enforcement action or diligently prosecuted the company following our notice.  Hence, and on our behalf, Appalmad proceeded to file legal action on January 21, 2021.

The lawsuit was filed in the U.S. District Court for the Southern District of West Virginia and alleges that JMAC’s Briar Mountain Surface Mine has been discharging pollutants into waters near the mine in violation of both the federal Clean Water (CWA) and Surface Mine (SMCRA) Acts.

Noted in the complaint are at least 98 times the company has exceeded permit limits since it began reporting selenium levels in March 2015. The West Virginia Department of Environmental Protection approved constructing a passive biological treatment system to treat and remove selenium from discharges at the outlet following a September 2015 administrative consent order from the DEP that required JMAC to address its selenium noncompliance, but the violations and pollution continues and the agency has not acted to enforce the schedule of compliance granted in the consent order.

Our complaint requests the court find JMAC to be in violation of the Clean Water Act, and the Surface Mine Act; issue an injunction prohibiting the company to continue operating in a manner that results in further violation of its permits and to immediately comply with those permits; compel JMAC to pay an appropriate civil penalty of up to $56,460 for each CWA violation; award Plaintiffs their attorney and expert witness fess; and grant any other relief as the Court deems just and proper.